From ars technica, a report about a proposal from a couple of Congresscritters who opposed SOPA for a “Digital Bill of Rights,” to help maintain a free and open Internet. The proposal calls for these “rights”:

The right to a free and uncensored Internet.

The right to an open, unobstructed Internet.

The right to equality on the Internet.

The right to gather and participate in online activities.

The right to create and collaborate on the Internet.

The right to freely share their ideas.

The right to access the Internet equally, regardless of who they are or where they are.

The right to freely associate on the Internet.

The right to privacy on the Internet.

The right to benefit from what they create.

This has some promise, but it’s both under- and over-inclusive. Under-inclusive in that it doesn’t call for the abolition of copyright, or for a radical reduction in term and penalties. In fact it suggests copyright is some kind of “right” in its call for “The right to benefit from what they create.” But so long as copyright exists, it is impossible to avoid its free-speech and free-press suppressing effects. There will continue to be a “balance” struck between copyright and First Amendment type rights; i.e., free speech will continue to be chilled and suppressed (see my post “Copyright is Unconstitutional”). It is impossible to have “a free and uncensored Internet,” which the new Digital Bill of Rights calls for, so long as there is copyright. You cannot have both free speech, and copyright.

And it is over-inclusive in that it calls for things like “the right to equality on the Internet” and “the right to access the Internet equally, regardless of who they are or where they are.” These and some other proposals are troubling in that they are not clearly limits on government behavior, but potential authorizations to the government to limit private actors. For example these provisions could be used by the state to regulate private companies in the name of “net neutrality” or to provide some kind internet access as a positive welfare right or privilege. (See my posts Net Neutrality Developments and Internet Access as a Human Right.)

Congress should not be declaring “rights,” since it can then serve as a source of power to the feds to regulate private activity, much as the federalizing of the Bill of Rights by way of the Fourteenth Amendment has served not to limit federal power but to extend it to regulating state laws. Congress should do nothing but limit its own power, since it is the federal government that is itself the biggest threat to Internet and digital freedoms.

A better, simpler, more effective, and less dangerous proposal would read something as follows:

Copyright law is hereby abolished [or its term reduce to 5 years and statutory damages eliminated].

Congress shall have no power to regulate or tax activity on the Internet, including gambling or commerce.

SOPA

The “Digital Bill of Rights” debuted at the Personal Democracy Forum in New York City on Monday. The document draft comes from Rep. Darrell Issa (R-CA) and Sen. Ron Wyden (D-OR), two key figures in the battle against SOPA.

Issa and Wyden created the Digital Bill of Rights because they were concerned about what seemed like a legal oxymoron: lawmakers trying to regulate the Internet without understanding how individuals use it.

“Government is flying blind, interfering and regulating without understanding even the basics,” Issa wrote on his website, KeepTheWebOpen.com (you can find a draft of the Digital Bill of Rights there). “Where can a digital citizen turn for protection against the powerful?”

At the conference, Wyden likened this project to a digital version of the “Constitutional convention.” It’s a convention that Issa and Wyden hope Internet users will participate in. On Issa’s site, he openly encourages readers to consider the current draft and suggest revisions (at the publication of this post, several individuals have already logged in to take that offer). Currently, the ten key rights are as follows:

The right to a free and uncensored Internet.

The right to an open, unobstructed Internet.

The right to equality on the Internet.

The right to gather and participate in online activities.

The right to create and collaborate on the Internet.

The right to freely share their ideas.

The right to access the Internet equally, regardless of who they are or where they are.

The right to freely associate on the Internet.

The right to privacy on the Internet.

The right to benefit from what they create.

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